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Administrative Review Council - Admin Review |
Minister for Immigration and Multicultural Affairs v Eshetu
High Court, Full Court, 13 May 1999
Federal Court's powers of review under the Migration Act—effect of recent amendments—unreasonable decisions
This case followed the decision of the High Court in Abebe v The Commonwealth (reported above). In Abebe, the High Court upheld amendments to the Migration Act 1958 ('Act'), which removed some of the grounds upon which the Federal Court could review a decision made by the Refugee Review Tribunal ('RRT'). One of the grounds removed was that of Wednesbury unreasonableness.
In the present case, the RRT had affirmed a decision to refuse an application by Mr Eshetu for a protection visa. Eshetu brought proceedings in the Federal Court to have the decision reviewed on the ground that it was unreasonable.
A majority of the Federal Court held that, despite the recent amendments to the Act (and discussed in relation to Abebe), the requirement in the Act that the RRT act according to substantial justice and the merits of the case meant that the RRT was still bound to make decisions that were not unreasonable. It followed that any contravention of this requirement was amenable to review by the Federal Court.
The Minister appealed the decision to the High Court and, in separate proceedings, Eshetu sought review of the original decision of the RRT - under the High Court's inherent jurisdiction, and again on the ground that the decision was unreasonable. The two matters were heard together.
The majority of the High Court allowed the Minister's appeal and dismissed Eshetu's application.
It was held that the amendments to the Act made it clear that it was not open to an applicant in the Federal Court to challenge a decision of the RRT on the ground that the decision was unreasonable. It followed that the view taken by the Federal Court was not permitted as a matter of legislative construction.
The majority also held that the ground of unreasonableness did not extend to a decision of the type made by the RRT and that, in any case, the decision was not unreasonable in the relevant sense.
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URL: http://www.austlii.edu.au/au/journals/AdminRw/1999/21.html